Protection of Refugees under Islamic Law
By Ehteshamul Haq
One of the cardinal objectives of law is to maintain the peace and security in the society. By extension, another purpose of the law is to ensure the rights of a human person against all forms of violations which he is subjected to. Different forms of rights including fundamental rights and human rights are frequently talked about but there are no precise definition of these terms. So much scholarly efforts have been devoted to define rights. According to Holland, “right is a capacity residing in one man of controlling, with the assent and the assistance of the state, the actions of others.”
However, a much more strong sense of rights is conveyed in Islamic law in which the term ‘right’ is a synonym of ‘Haq’. Haq is an Arabic word with several connotations, such as, right, power claim and capability, established facts or reality. The word haq has frequently been used in the Quran to denote varieties of meaning. In the Quran at least six different meaning of haq has been discussed. Such as in Sura Yasin (36:7), Sura al-A’araf (7:44), Sura al-Baqarah (2:41), Sura al-Furqan (25:68),
Sura al-Dhariat (51:19, 23).
Under Islamic law, haq might be of two types, one is huqqu-Allah (rights of Allah (Swt)) and huqq-ul ibad (rights of men or human rights). Here the latter refers to the power, which entitles an individual to enjoy certain rights and carry out his obligations towards his fellow human beings. So it is said that “the basic concept and principles of human rights have from the beginning, been embodied in Islamic law” and “Islamic concept of rights i.e. fundamental rights are so practical, which 1500 years ago Islam gave to men”.
We propose to discuss the rights and entitlement of refugees as ensured by Islamic law. Refugees are a major problem of the contemporary world. Total estimated refugees in the world stand at about 62 million today. The UN General Assembly, on 4 December 2000, adopted resolution 55/76 where it noted that 2001 marked the 50th anniversary of the 1951 Convention relating to the Status of Refugees, and the General Assembly, therefore, decided that, from 2001, 20 June would be celebrated as World Refugee Day. This year (2011), the UN refugee agency, namely, UN High Commissioner for Refugees (UNHCR) in its 60th year, marked World Refugee Day with a rich and varied programme of events in locations worldwide and the launch of a new global awareness campaign. UNHCR would start rolling out the multimedia “One” campaign. Over the next six months it will increase awareness about the forcibly displaced and stateless by telling their powerful personal stories. The campaign will carry the message that “One Refugee Without Hope is too Many.” Every day, millions of refugees face murder, rape and terror. Against this backdrop, we intend to critically examine the issue of protection of refugees under Islamic laws.
At the very beginning, let us define the term refugees. Simply put, a refugee in a person who takes refuge in another country for fear of persecution or threat to his/her life. The reasons for flight from the country of origin may arise from many situations like flight from oppression and/or threat to life or liberty, flight from unlawful prosecution, flight from war, flight from natural disasters. In Islam there is no way of compulsion in any aspect of life. As Allah Almighty says “Help you one another in virtue, righteousness and piety” (5:2). Particularly while talking about the taking of ones life Islam is very straight forward as it is stated in that “On that account we ordained for the children of Israel that if any one slew a person unless it be for murder or for spreading mischief in the land- it would be as if he slew the whole people and if any one saved a life. It would be as if he saved the life of the whole people” (Sura Al-Maida, 5:32).”
The plight of refugees is not unfamiliar to anyone in Bangladesh. Bangladesh had the first-hand experience on the refugee situation. Bangladeshi nationals found themselves as refugees in India during 1971 when Pakistan military junta perpetrated unimaginable atrocities including genocide on the people of Bangladesh during the nine months period of March to December 1971. Bangladesh fully realizes the vulnerability of the refugees and opened its frontiers from time to time to the refugees from Myanmar for humanitarian reasons. Notably, Bangladesh is not a party to the 1951 Refugee convention. In addition to that, thousands of Rohingyas continue to arrive here and mix with local population over the years. Apart from that an estimated 300,000 Rohingyas are reportedly now in Saudi Arabia and other Middle Eastern counties holding Bangladeshi passports. In that situation as Bangladesh had the experience of both being a refugee and hosting refugees, we need know the legal regime of refugee in our country.
Modern international refugee law and law on forced migration comprise of international instruments relating to human rights. These documents include the Universal Declaration of Human Rights of 10 December 1945, the two international Covenants of Civil and Political Rights and on Economic, Social and Cultural Rights of 16 December 1966, the 1951 Refugee Convention and the United Nations Convention on the Protection of the Rights of All Migrants and the Members of their Families of 18 December 1990. These instruments have universal, regional as well as national application.
Modern international refugee law excludes some categories of persons who are not covered by the 1951 Refugee Convention from international protection. For example, Article l-D declares that the 1951 Convention will not apply to persons “who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.” This is the case of over 3 million Palestinian refugees who receive assistance (and not protection) from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
Modern refugee law does not consider asylum as a right of individuals; it is the right of the state only. In addition it does not concern all forced migrants but only a few of them who are well defined in Article 1 of the 1951 Convention. Many person are consequently excluded from its protection and therefore, from asylum. Modern refugee law does not protect IDPs as there are no binding international instruments relating to them in particular. The Guiding Principles on Internal Displacement, prepared in 1998 by Special Representative of the Secretary General for IDPs, Francis Deng, apply to such persons, but these principles are not binding on states.
On the other hand, some refugees need special attention, such as women and children. Women, especially Muslim women have special needs as refugees, but these are rarely taken into account by modern refugee law or state practice. Regarding this Allah Almighty says “No mother shall be treated unfairly on account of her child, not father on account of his child……and fear God and know that God is All-Seer of what you do (2:233)”.Again it is says that “O you who believe! When believing women come to you as emigrants, examine them, God knows best as to their faith, then if you ascertain that they are true believers, send them no back to the disbelievers, they are not lawful (wives)” for the disbelievers nor are the disbelievers lawful (husband) for them. But give the disbelievers that (amount of money) which they have spent (as their Mahr) to them And there will be no sin on you to marry them. Likewise hold not the disbelieving women as wives and ask for (the return of) that which you have spend (as Mahr) and let them (the disbelievers, etc) ask back for that which they have spent. That is the judgement of God. He judges between you. And God is all-knowing, All-wise (Quran 60:10). And one thing should be mentioned here that there is no conflict between Article 16 of UDHR and the concept of Islam regarding marriage. In simple term, Article 16 states that every person has a right to propose to whomever they want and that the spouse has a right to accept or decline this proposal, as marriage can only be entered into with the free and full consent of the intending spouses.
Being a Muslim dominating country (not an Islamic country) Bangladesh does not have any existing and expressed legal framework to deals with the refugee issues. Some of the articles of our constitution like Articles 25, 32, 39 indirectly deal with the protection of refugees in Bangladesh. Article 25 of Bangladesh Constitution states that “The state shall base its international relations on the principles of respect for….international law and the principle enunciated in the United Nations Charter”. Article 32 provides that “No person shall be deprived of life and liberty save in accordance with law”. In order to have protection under this Article one need not be a citizen of Bangladesh. So irrespective of whether he or she is a citizen of Bangladesh cannot be deprived of his/her life or liberty once that person is on the soil of Bangladesh. Under Article 39 of the Constitution freedom of though, speech and expression are guaranteed. Bangladesh’s successive democratic governments are fully committed to respect the provisions of the constitution. The charter in its Articles of 1, 13 (2), 55, 62 reiterates the observance o human rights for all peoples of the world.
Article 13 (2) of UDHR provides that everyone has the right to leave any country, including his own and to return to his country. In this regard, Allah Almighty says: he who emigrates (from his home) in the cause of God, will find on earth many dwelling places and plenty to live by (4:100).
Inspite of having the traditional views Islam requires believers to assist and protect vulnerable people and offers a number of mechanisms for their care and support. We know that Islam is a complete code of life. Islam does offer an array of rights that humans, by virtue of being human, are entitled to and which, from a modern perspective, seem no different from many of the rights listed in the UDHR or 1951 Convention. According to the Holy Quran, there is no difference or distinction between one child and another by virtue of his birth: (17:70) The Qur’an further says,”We have made every human being equally worthy of respect” is the ground rule. It is apparent that both men and women are included in “humanity” and both of them are equally worthy of respect.
Rights to justice, equality, safety, security and human dignity are among those rights deemed indispensible in Islam. Regarding justice it was said in the Quran that, “O you who believe! Stand out firmly for God and be just witnesses and let not the enmity and hatred of others make you avoid justice. Be just: that is nearer to piety and fear God. Verily, God is Well Acquainted with what you do (5:8)”, again it was said that, “And do not take life which God has sanctified (forbidden) (17:33)”and “O you who believe! Eat no up your property among yourselves unjustly except it be a trade amongst you, by mutual consent and do not kill yourselves (nor kill one another). Surely, God is the Most Merciful to you (4: 29)”, regarding security “Help you one another in virtue righteousness and piety (5:2)”.These are supplemented by further rights such as social solidarity, the right to education (39:9), (58:11) and to own property, and freedom from slavery. It is not difficult to see why some would argue that many of the rights acknowledged and guaranteed in the UDHR are rights that had been granted in Islam some 14 centuries earlier.
This was acknowledged by the Organisation of the Islamic Conference (OIC). The OIC responded by producing its own human rights charter which, while inspired by the UDHR, the Medina charter and emphasizing “the commitment of its member states to the UN Charter and fundamental Human Rights”, is yet compatible with Islamic principles.
Refugees lack protection from their countries of origin and are in need of international protection. They are usually fleeing persecution and insecurity and in need to find a safe place to live. That is why they seek asylum. Modern refugee law has no provision to the effect that to be granted asylum is a right of asylum-seekers.
The 1951 Convention does not mention asylum in its provisions. Only the Universal Declaration of Human Rights deals with asylum. Article 14 of UDHR states that, “everyone has the right to seek and enjoy in other countries asylum from persecution.” The term ‘enjoy’ does not mean in any case the automatic grant of asylum. The same article adds, however, that “this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.” Unfortunately no exact definition of a ‘political crime’ exists in international law. It is left to states to decide on the definition of political and non-political crimes and in state practice, a crime is rarely considered to be political.
The crux of the matter is that granting or refusing asylum is the exclusive right of the state. The only obligation for the state is that an asylum-seeker will not be forcibly returned to any country where his/her life could be in danger, according to article 33 of the 1951 Refugee Convention. Consequently, all forced migrants in the world are not really protected by modern refugee law. Only some of them are granted protection.
The law and practice relating to forced migration and to refugees in the Muslim world are today far less protective of refugees than as conceived according to the Islamic hijrah and aman traditions. The rich heritage of Islam in the field of migration law and refugee protection is in some respects of great significance to the international community. This tradition has been abandoned, for no plausible reason, throughout the Muslim world today. In the past, Islam made a great contribution to the humanization of internal and international relations in the Muslim world. It could play this role even today and could prompt a much-needed humanization of some branches of international law. Given the current importance of this issue, Muslim states must urgently need to revive the Islamic concepts of hijrah and aman in order to contribute to the improvement of modern refugee law, and to make it more protective for refugees and forced migrants in general. Unfortunately, the Muslim world today is divided into many nation-states; is governed in the majority of cases by secular law; and very often, there is no or little respect for human rights.
Islam must be evaluated with reference to its tenets and humanitarian principles. Today the gap between theory and practice is very deep in the Muslim world, which leads to misconceptions and misunderstanding about Muslims, Islamic law and Islam, in general. As a result, this issue is worthy of further research and assessment in both the Islamic and international context.
Ehteshamul Hoq is Senior Lecturer, Bangladesh Islamic University (BIU) & lawyer.